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TMI Blog2019 (12) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, according to the Commissioner, the appeal was filed on 4 September, 2018 against an order dated 29 August, 2017 passed by the Assistant Commissioner, which order had been served upon the Appellant on 12 September 2017. 2. The Appellant had claimed refund of Oil Cess paid in excess by the Appellant on account of difference in the foreign exchange rate applied by the Appellant at the time of invoicing (which was the provisional exchange rate) and the foreign exchange rate prevailing at the time of payment, which was the relevant rate for computing the transactional value of Crude Oil in terms of the Crude Oil Sale Agreement. The refund claim was filed before the Assistant Commissioner on 30 May, 2017 pertaining to the period from June 2016 to August 2016 and January 2017 to March 2017 under Section 11 (B) of the Act. A show cause notice dated 9 August, 2017 was, however, issued by the Assistant Commissioner seeking an explanation from the Appellant as to why the refund claim filed by the Appellant should not be rejected. A detailed reply was filed by the Appellant, but the Assistant Commissioner by order dated 29 August, 2017 rejected the refund claim. 3. It transpires that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." 5. The Commissioner (Appeals), as noticed above, dismissed the appeal filed by the Appellant on 4 September 2018 by order dated 1 January, 2019 finding it to be barred by time. The relevant portion of the order passed by the Commissioner (Appeals) on this aspect is reproduced below: "6.1 I find that Order-in-Original No. 28/2017-R was issued on 29.08.2017 and appellant has contended in Appeal Form ST-04 that the said OIO has been received on 06.08.2018, it appeared that there was abnormal delayed in receipt of OIO from the date of issue. Therefore, this office vide letter dated 25.10.2018 has asked the adjudicating authority to intimate the actual date of delivery of the impugned order along with the documentary proof. The adjudicating authority vide letter dated 20.11.2018 has informed that the OIO was issued on 29.08.2017 and the same has been sent through speed post No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso clause under Section 35 of the Central Excise Act, 1944, the Commissioner (Appeals) may be condoned delay in filing appeal of thirty days. In the instant case as the appeal filed on 04.09.2018 is beyond permissible time limit of thirty days hence cannot be condoned. 7. I find that various Tribunal/ Courts have held that Commissioner (Appeals) has no power to condone delay beyond statutory prescribed period. 8. In view of above, I hold that the appeal filed by Appellant is time barred in terms of proviso to 35 (1) of the Central Excise Act, 1944. I, therefore, dismiss the appeal without going into merits of the case." [emphasis supplied] 6. It has been specifically stated in this Appeal that the finding of the Commissioner (Appeals) that the order dated 29 August, 2017 was sent by speed post bearing no. ER924187517IN on 1 September, 2017 is factually incorrect. It has been stated that the envelope of the aforesaid speed post sent on 1 September 2017 bearing no. ER924187517IN contained a letter number C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 that was issued by the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office and related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also stated in this Appeal that since it had not received the original order dated 29 August, 2017 on 12 September, 2017, it filed an application under the Right to Information Act on 9 January, 2019 seeking the following information: "1. Photo copy of the dispatch register vide which order-in-original No. 28/2017-R dated 29 August 2017 (F. No. V(Rfd.)18/JDR/121/2017-1552-56) was sent to M/s Cairn India (Now Vedanta Limited). 2. Copy of the Speed post/Registered Post receipt along with the tracking No. for dispatch of the aforesaid O-I-O No. 28/2017 dated 29/08/2017." 8. The Assistant Commissioner by letter dated 5 February 2019 supplied a copy of the dispatch register as also the speed post register. 9. The Appellant has further stated in this Appeal that as the said documents supplied to the Appellant under the Right to Information Act appeared to be tampered with, an inspection of the records was requested on 20 February 2019 and the inspection was allowed on 20 February, 2019. On the basis of the inspection carried out, an affidavit of the two advocates who had inspected the records has also been filed with this Appeal and it is reproduced below: "AFFIDAVIT Affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affidavit and a detailed order was passed, which is reproduced below: "The Commissioner (Appeals) by order dated 1 January, 2019 dismissed the appeal filed by the appellant against the Order-in-Original dated 29 August, 2017 for the reason that it was filed beyond the period stipulated in Section 35F of the Central Excise Act, 1944. In the appeal form, the appellant contended that it received the Order-in-Original on 6 August, 2018. The Commissioner (Appeals) doubted this contention of the appellant as according to him there was an abnormal delay. The Commissioner (Appeals), therefore, sought a report from the Adjudicating Authority as to the correct date of actual delivery of the impugned order with documentary proof. The Adjudicating Authority, as has been noticed by the Commissioner (Appeals) in paragraph 6.1 of the order, informed that the Order-in-Original was issued on 29 August, 2017 and it was sent by Speed Post No. ER92418751IN (should be ER924187517IN) dated 1 September, 2017 to the appellant and the same was not returned back as per their office record. The Commissioner (Appeals) also noted that the Postal Department informed, on a query made by the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tember 2017 appears to have been inserted as not only it bore a speed post number beginning with 824 but Vedanta Limited was written in English, whereas the other entries were written in Hindi and in a different style when compared with the other entries on the said page. 8. As noticed above, the appeal was dismissed by the Commissioner (Appeals) only for the reason that since the Order-in-Original was served upon the Appellant on 12 September 2017, the appeal was filed beyond the period provided in Section 35F of the Central Excise Act. 9. In this view of the matter, the contents of the despatch register and the speed post register assumes importance. 10. In view of the averments made in the affidavit filed by the two lawyers, it is considered necessary to direct the Assistant Commissioner in charge of the Adjudication Cell to file his personal affidavit in response to the affidavit of the two lawyers which is at page No. 502 and 503 of this appeal. The respondent shall also place the original despatch register and the speed post register on 10 May, 2019. The registers shall be brought by a responsible officer of the Department in a sealed cover. It is made clear that no tam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 02.08.2018 from the assessee M/s Vedanta Limited, seeking therein the status of the show cause notice, when the dealing assistant was asked about dispatch of this order, She checked the register and found it in torn condition on 02.08.2018. She never brought this in notice of any one in the office till this was pointed out during the inspection done by Sh. Shubham Tyagi and Sh. D.K. Nayyar on 20.02.2019. 2. The dispatch serial No. 1555 against which there is whitener does not pertain to the assessee i.e. M/s Vedanta Limited but pertains to CGST Range X Balotra. She has stated that she does not remember anything as to how the whitener has come against the dispatch entry 1555. She also told that she keeps these register in her table drawer which is without lock and key and is unguarded. 3. There is no such practice to further monitor the delivery of post to the receiver. [emphasis supplied] 12. Today, when the matter has been taken up, learned Authorised Representative of the Department has submitted the original dispatch register and the original speed post register. Scanned copies of the relevant page 80 of the Speed Post Register with an earlier page and the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 2017 sent by the Superintendent of Central Goods and Service Tax, Range-II, Jodhpur in connection with an entirely different matter, but neither has any document been placed by the Department to show when and how the said letter dated 1 September 2017 was sent to the Appellant by the Range Office nor there is denial of this fact in the affidavit filed by the Assistant Commissioner; (v) There is no plausible reason as to why the order dated 29 August 2017 passed by the Assistant Commissioner in the Division Office would be sent by speed post by the Range Office. The show cause notice resulting in the order dated 29 August 2017 and the order dated 29 August 2017 were sent to the Appellant by speed post on 6 August 2018 by the Division Office and not the Range Office; (vi) The statement made in the affidavit of the Assistant Commissioner that the order dated 29 August, 2017 was given by hand to a concerned officer of the Range Office at Balotra for service upon the assessee and, thereafter, the said order was sent to the Appellant by the said Range Office by speed post is apparently incorrect for the reason that no supporting documents to substantiate the said statement have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner by order dated 29 August, 2017 on merits as also on account of unjust enrichment. 17. The contention of the Appellant is that prior to the filing to the refund claim on 30 May 2017, the Appellant had earlier also filed a refund claim on 24 March 2017 for the period March 2016 to May 2016 and though the Assistant Commissioner had rejected the refund claim, but the appeal filed by the Appellant before the Commissioner (Appeals) was allowed by order dated 8 June, 2018 holding that the Appellant had paid excess Oil Cess and that the Appellant had not been unjustly enriched. This order was received by the Appellant on 2 August 2018, on which date the Appellant had also requested that a decision be taken on the refund application subsequently filed by the Appellant on 30 May, 2017. However, the Appellant was informed that the said claim had been rejected. Thereafter, the Appellant made a request on 3 August, 2018 for making available the order. This order dated 29 August, 2018, according to the Appellant, was then made available to the Appellant by hand on 6 August, 2018 and the order was also sent to the Appellant on 6 August, 2018 by speed post bearing no. ER956930766I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust, 2018. The speed post register has been very carefully perused. It shows that after each change of date, there is a gap of at least three lines or the next date starts on a different page. It also shows that before an entry of a particular date starts there is a gap of one line and after each entry of a particular date, there is also a gap of at least one line. What transpires from a perusal of the relevant page 80 of the Speed Posts Register in connection with date 1 September, 2017, is that there is no gap of even a single line after the last entry of date 31 August, 2017 and writing of the date 1 September, 2017. In fact 1 September 2017 has been written on the same line in which the last entry relating to the previous date 31 August, 2017 ends. As stated above, there should have been a gap of at least three lines after the last entry of 31 August 2017 ended and the writing of date 1 September 2017. If the entry relating to 1 September, 2017 is ignored, there will be a gap of three lines between the line containing the last entry of date 31 August, 2017 and the line in which date 4 September, 2017 is written in the speed post register. There is also no gap of any line after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Register/ Peon Book of the Division Office. Further, an entry in the relevant Register/ Peon Book of the Range Office has to be made on receipt of the letter. If the order dated 29 August 2017 was sent by speed post to the Appellant by the Range Office, then it has to be entered in the dispatch register of the Range Office. If information regarding dispatch of this order by speed post has been conveyed by the Range Office to the Division Office, then again a letter has to be sent with respective entries in the Register/ Peon Book of the Range Office and the Head Office. The affidavit does not mention about such entries in the Registers/Peon Books. The averment is based only on some oral information said to have been provided by the dealing assistant in the Head Office to the Assistant Commissioner after almost one year and eight months. What needs to be noted is that there is only an entry in the speed post register of the Division Office that mentions the envelope bearing No. ER924187517IN was sent by speed post to the Appellant on 1 September 2017. There is no mention in this entry that the entry has been made on the basis of any information supplied by the Range Office. A pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Commissioner (Appeals) sought a query from the Adjudicating Authority regarding actual date of delivery of the order, the Adjudicating Authority by letter dated 20 November 2018 informed that the order was sent by Speed Post No. ER924187517IN on 1 September 2017 and the same had not returned back as per their office record. This fact has also been noted by the Commissioner (Appeals) in the impugned order. 31. The matter can be examined from another angle and this will clinch the issue in favour of the Appellant. The Appellant had specifically stated in the memo of appeal that the envelope bearing no. ER924187517IN actually contained a letter dated 1 September, 2017 bearing no. 1740 that was sent by the Superintendant, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office to the Appellant in connection with an entirely different matter and that the envelope was not sent by the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur, in the Range Office who had passed the order. This fact has also been mentioned in the order dated 11 April, 2019 passed by the Tribunal. In fact, in the affidavit filed by the two advocates after inspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contained in the said envelope was a letter dated 1 September 2017 sent by the Superintendent in the Range Office to the Appellant. 35. This finding also supports the finding earlier recorded that manipulation was done in the Speed Post Register of the Division Office at page 80 by inserting the date 1 September 2017 after 31 August 2017, and before 4 September 2017 to make out a case that the order dated 29 August 2017 had been dispatched by speed post to the Appellant on 1 September 2017 whereas it was a letter dated 1 September 2017 that was dispatched to the Appellant by Speed Post from the Range Office. 36. At this stage, it will also be appropriate to refer to the provisions of the Act relating to service of orders. Section 37C (1) of the Act provides that an order shall be served by tendering the order or by sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier to the person for whom it is intended. Sub-section (2) provides that every order shall be deemed to have been served on the date on which the order is tendered or delivered by post or courier. The Department has not maintained proof of delivery of the orders as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to the Chairman of the Central Board of Indirect Taxes and Customs. The two registers and the letter dated 1 September 2017 with the envelope shall be kept in a sealed cover with the Registrar of the Tribunal to be made available as and when required. (Dictated and pronounced in the open Court) (JUSTICE DILIP GUPTA) PRESIDENT BIJAY KUMAR: 41. The present appeal is filed against the order dated 01.01.2009 passed by the Commissioner (Appeal). The Commissioner (Appeal) dismissed the appeal filed by the Appellant on the ground of having been filed beyond the period specified in Section 35 F of the Central Excise Act, 1944. It is the contention of the Appellant that the appeal before Commissioner (Appeal) was filed in time as Order-in-Original dated 29.08.2017, which was subject matter of appeal was received by the Appellant on 11 August, 2018 and the appeal, was filed on 04.09.2018 and hence the appeal was filed within the prescribed time as contemplated under Section 35F of the Excise Act. The Commissioner (Appeal), on enquiry, found that the adjudicating authority had forwarded the order to the Appellant by speed post No. ER92418751IN dated 01.09.2017 (should be ER 9241 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant by hand on 6 August, 2018. 3. Learned Counsel for the appellant has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 under the Right to Information Act and which are contained at page No. 499 and 500 of the Appeal. 4. A perusal of the speed post register indicates that as against the date 31 August, 2018, there are two entries and the name of the sender is mentioned with Speed Post No. ER902033584IN and No. ER902033598IN. Likewise, the entries of date 4 September 2017 bear Speed Post Nos. ER90206336861IN,ER9033505IN, ER902034718IN and ER 0902034695IN. 5. It is, however, seen that as regard entry of date 1 September, 2017, the name Vedanta Limited in English is written with Speed Post No. ER824187517IN. 6. From the aforesaid, it is contended by the learned Counsel for the appellant that the entry of Vedenta Limited against date 1 September, 2017, has been subsequently inserted. It is suggested that this entry instead of indicating the name of the sender, as in the other entries of 31 August 2017 and 4 September, 2017, mentions the name of the recipient as Vedanta Limited and the Speed Post number begin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gister of the division office. It is submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses. 3. On examination of the speed post register it can be seen that the number of lines skipped in the Speed post register are not fixed as the same are 2 or 3 or 4 at different pages. It may also be due to the fact that Mrs. Sunita Java is only 10th passed. 4. On examination of the speed post register it can be seen that the numbering of the pages has been corrected by overwriting. The dealing assistant who maintains these registers is not highly educated and therefore overwriting was not intentional. 5. The speed post register is maintained for internal monitoring purpose only." 44. The perusal of the above averments make it clear that the impugned Order-in-Original dated 29 August, 2017 was sent through the Range Officer for dispatch to the appellant by speed post and which was done by the Speed post vide ER No. 9214118757IN, Balotra Range. The submission of the Assistant Commissioner on affidavit that the order dated 29.08.2017 was handed over to the concerned Range Officer by hand for sending through Speed post is not very com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Technical) on the issue whether the appeal filed by the Appellant against the Order passed by the Assistant Commissioner dt. 29.08.2017 was within the time limit prescribed under Section 35(1) of Central Excise Act, 1944 and accordingly the Appeal be remanded to the Commissioner(Appeals) for deciding the case on merit or further enquiry is necessary to ascertain the date of communication of the Order. 3. To appreciate the point of difference, it is necessary to narrate the facts in brief even though elaborated in the order of the Hon'ble President. 4. The Appellant has filed the refund claim on 30th May, 2017 on account of excess oil cess paid during the period June, 2016 to August, 2016 and January, 2017 to March, 2017 amounting to Rs. 19.43 Crores (approx.). The show cause notice was issued to the appellant on 09.08.2017 proposing rejection of the refund claim to which they filed their reply to the said notice. Consequently, the Adjudicating Authority heard the Appellant on 21st August, 2017 and issued the order on 29th August, 2017. 5. The appellant had also filed a refund claim earlier on 24th March, 2017 on the same issue for an amount of Rs. 117.00 crores (approx.) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the affidavit filed by the Lawyers of the Appellants, enclosed with appeal paper book. Consequently, the Assistant Commissioner filed an affidavit on 09th May, 2019 and forwarded speed post register as well as dispatch register maintained during the relevant period at the Division office. 9. The Hon'ble President on perusal of the Registers, analysis of the evidences on record and the affidavit filed by the Assistant Commissioner arrived at the conclusion that the order has been communicated to the appellant only on 06th August, 2018 and thus the appeal filed before the learned Commissioner (Appeals) on 04.09.2018 is not beyond the period of limitation prescribed under Section 35(1) of Central Excise Act, 1944; whereas the Hon'ble Member (Technical) was of the opinion that further inquiry in the matter required to be carried out. 10. The learned Advocate, Shri Sunil Gupta advancing the argument on behalf of the Appellant has submitted that on receipt of a favourable Order in the Appeal against the rejection of first refund claim from the office of the Commissioner (Appeal) on 8th June, 2018, and also since their third refund claim for Rs. 1.70 crore was also sanctioned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practice to send the post through Range Office to minimise the postal expenses; which should be understood to mean that it is a common practice to send office dak and some letters by hand delivery to the assessees through the Range Office to minimise the expenses of sending the same by post from the Division office. He has submitted that from the postal charge and size of the envelope with the speed post bearing no. ER924187517IN, it is clear that the adjudication order dated 29.08.2017 could not have been sent in the said envelope as the window envelope cannot contain the Order in legal paper size. It is his contention that, however, there could not be any manipulation and forgery on the part of the staff on the record. He has further submitted to decide the case on merit. 13. I have carefully considered the submission advanced by both the sides and perused the records. 14. The limited issue involved in the present reference for determination is whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or the order was delivered on 06th August, 2018 by hand delivery/11th August, 2018 through speed post, and the time limited prescribed under Section 35(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l authorities as undelivered, however, it is a rebuttable presumption and the addressee could rebut through evidences that the speed post has not been delivered to him. This principle has been laid down by the Hon'ble Madhya Pradesh High Court in the case of Indore Municipal Corporation vs. Commissioner of Central Excise, [2016 (338) ELT 567 (MP)]. 19. In the present case the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post ER9241875719IN dated 01.09.2017 and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable. 20. I find that in their separate orders, Hon'ble President and Hon'ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post no. ER9241875719IN. In the affidavit of the Asst. Commissioner at para 2 it is stated that the order has been sent to Range of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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